NECESSITY,
FUNCTION, AND CONFORMITY: KRS 350.028(1) and (5), 350.151(1), and 350.465(2)
authorize the cabinet to promulgate administrative regulations relating to
surface and underground coal mining operations. This administrative regulation
establishes the requirements for the protection of the hydrologic balance,
protection of surface and groundwater quantity and quality, control of erosion
and sediment, control of acid-forming and toxic-forming materials, protection
of streams, and the replacement of water supplies. This administrative
regulation differs from federal regulations as follows: Section 8(1) requires
that replacement of water supplies be done "promptly". This
requirement appears in 30 CFR 817.41(j) relating to underground mines, but does
not appear in 30 CFR 816.41(h) relating to surface mines. It is included in
this administrative regulation because KRS 350.421(2), which requires
replacement of the water supply, makes no distinction between underground and
surface mines. Section 8(2)(a) of this administrative regulation, regarding
replacement of domestic water supplies, includes requirements for emergency,
temporary, and permanent replacement that are not included in the federal
counterpart at 30 CFR 816.41(h) but are included in the definition of
"replacement of water supply" at 30 CFR 701.5. It includes specific
time frames for replacement that are not included in the federal regulations
but are suggested in the preamble (60 FR 16727, March 31, 1995) to the federal
regulations and are needed for fair and consistent enforcement of the
requirement to promptly replace domestic water supplies. Section 8(2)(e) of
this administrative regulation, regarding payment of excess delivery costs,
includes a base time period of twenty (20) years that is not included in the
federal regulations, and also includes more flexible payment options than the
federal regulations. This time period is discussed as an example in the
preamble at 60 FR 16726, March 31, 1995 and is needed for fair and consistent
enforcement of the requirement to pay excess delivery costs. Section 8(4)(b) of
this administrative regulation, regarding coverage of water replacement by
liability insurance rather than additional performance bond, is not included in
the federal counterpart at 30 CFR 816.41(h). The federal bonding regulation at
30 CFR 800.14(c) provides that the permittee's financial responsibility for
repairing material damage resulting from subsidence under 30 CFR 817.121(c),
which includes damage to water supplies, may be satisfied by the liability
insurance policy required under 30 CFR 800.60. This provision is included in this
administrative regulation in order to provide the same option to surface mining
permittees that 405 KAR 18:060, Section 12 provides to underground mining
permittees. Section 8(4)(c) of this administrative regulation, regarding prompt
release or return of additional bond posted for water replacement, is not
included in the federal regulations. This administrative regulation is
consistent with the purpose of the federal regulations because the bond cannot
be released or returned until after the permittee has completed the water
supply replacement that the bond is intended to guarantee.

Section 1.
General Requirements. (1) All surface mining activities shall be planned and
conducted to minimize disturbance of the hydrologic balance in both the permit
area and adjacent areas, in order to:

(c) Support
the approved postmining land uses in accordance with the terms and conditions
of the approved permit and the performance standards of this administrative
regulation.

(2) Changes in
water quality and quantity, in the depth to groundwater, and in the location of
surface water drainage channels shall be minimized so that the approved
postmining land use of the permit area is not adversely affected.

(3) In no case
shall federal and state water quality statutes, regulations, standards, or
effluent limitations be violated.

(4) Operations
shall be conducted to minimize water pollution and, where necessary, treatment
methods shall be used to control water pollution.

(a) Each
permittee shall emphasize mining and reclamation practices that prevent or
minimize water pollution. Changes in flow of drainage shall be used in
preference to the use of water treatment facilities.

(b) Acceptable
practices to control and minimize water pollution include:

9.
Implementing sediment control measures in Section 2 of this administrative
regulation.

Section 2.
Sediment Control Measures. (1) Appropriate sediment control measures shall be
designed, constructed, and maintained using the best technology currently
available to:

(a) Prevent,
to the extent possible, additional contributions of sediment to stream flow or
to run off outside the permit area;

(b) Meet the
requirements of 405 KAR 16:070, Section 1(1)(g); and

(c) Minimize
erosion to the extent possible.

(2) Sediment
control measures include practices carried out within and adjacent to the
disturbed area. The sediment storage capacity of measures in and downstream
from the disturbed areas shall reflect the degree to which successful mining
and reclamation techniques are applied to reduce erosion and control sediment.
Sediment control measures consist of the utilization of proper mining and
reclamation methods and sediment control practices, singly or in combination.
Sediment control methods include:

(a) Disturbing
the smallest practicable area at any one (1) time during the mining operation
through progressive backfilling, grading and prompt revegetation as required in
405 KAR 16:200, Section 1(2);

(b)
Stabilizing the backfilled material to promote a reduction in the rate and
volume of run-off, in accordance with the requirements of 405 KAR 16:190;

(c) Retaining
sediment within disturbed areas;

(d) Diverting
run-off away from disturbed areas;

(e) Diverting
run-off using protected channels or pipes through disturbed areas so as not to
cause additional erosion;

Section 3.
Discharge Structures. Discharge from sedimentation ponds, permanent and
temporary impoundments, coal processing waste dams and embankments, and
diversions shall be controlled, by energy dissipators, riprap channels, and
other devices, where necessary, to reduce erosion, to prevent deepening or
enlargement of stream channels, and to minimize disturbance of the hydrologic
balance. Discharge structures shall be designed according to standard
engineering design procedures.

(1)
Identifying, burying, and treating, in accordance with 405 KAR 16:190, Section
3, materials which may adversely affect water quality, or be detrimental to
vegetation or to public health and safety if not buried and treated;

(2) Storage,
burial or treatment practices consistent with other material handling and disposal
provisions of this chapter; and

(3) Burying or
otherwise treating all acid-forming or toxic-forming spoil within thirty (30)
days after it is first exposed on the mine site, or within a lesser period
required by the cabinet. Temporary storage of the spoil may be approved by the
cabinet upon a finding that burial or treatment within thirty (30) days is not
feasible and will not result in any material risk of water pollution or other
environmental damage. Storage shall be limited to the period until burial or
treatment first becomes feasible. Acid-forming or toxic-forming spoil to be
stored shall be placed on impermeable material and protected from erosion and
contact with surface water.

Section 5.
Groundwater Protection and Recharge Capacity. In order to protect the
hydrologic balance, surface mining activities shall be conducted according to
405 KAR 8:030, Section 32(1) and (2) and the following:

(1)
Groundwater quality shall be protected by handling earth materials and run-off
in a manner that minimizes acidic, toxic, or other harmful infiltration to
groundwater systems and by managing excavations and other disturbances to
prevent or control the discharge of pollutants into the groundwater; and

(2)
Groundwater quantity shall be protected by handling earth materials and run-off
in a manner that will restore the approximate premining recharge capacity of
the reclaimed area as a whole, excluding coal mine waste disposal areas and
excess spoil fills, so as to allow the movement of water to the groundwater
system.

Section 6.
Surface Water Protection. In order to protect the hydrologic balance, surface
mining activities shall be conducted according to 405 KAR 8:030, Section 32(1)
and (2) and the following:

(1) Surface
water quality shall be protected by handling earth materials, groundwater
discharges, and run-off in a manner that:

(a) Minimizes
the formation of acidic or toxic drainage;

(b) Prevents,
to the extent possible using the best technology currently available,
additional contribution of suspended solids to stream flow outside the permit
area; and

(c) Will not
cause or contribute to a violation of any federal or state effluent limitations
or water quality standards.

(2) If
drainage control, restabilization and revegetation of disturbed areas, diversion
of run-off, mulching, or other reclamation and remedial practices are not
adequate to meet the requirements of this section and 405 KAR 16:070, the
operator shall use and maintain the necessary water-treatment facilities or
water quality controls for as long as treatment is required under this chapter;
and

(3) Surface
water quantity and flow rates shall be protected by handling earth materials
and run-off in accordance with the steps outlined in the plan approved under
405 KAR 8:030, Section 32(1) and (2).

Section 7.
Transfer of Wells. Before final release of bond, exploratory or monitoring
wells shall be sealed in a safe and environmentally sound manner in accordance
with 405 KAR 16:040. With the prior approval of the regulatory authority, wells
may be transferred to another party for further use. At a minimum, the
conditions of such transfer shall comply with state and local law and the
permittee shall remain responsible for the proper management of the well until
bond release in accordance with 405 KAR 16:040.

Section 8.
Replacement of Water Supply. (1)(a) If the cabinet receives a citizen's
complaint under 405 KAR 12:030 that the person's water supply has been
adversely impacted by the activities of a permittee named in the complaint, the
cabinet shall promptly notify the permittee of the complaint.

(b) The
permittee or operator shall promptly replace the water supply of an owner of
interest in real property who obtains all or part of his supply of water for
domestic, agricultural, industrial, or other legitimate use from an underground
or surface source, if the water supply has been adversely impacted by
contamination, diminution, or interruption proximately resulting from the
surface mining activities. Baseline geologic and hydrologic information
required in 405 KAR 8:030, Sections 12 through 16, and other relevant
information available to the cabinet, shall be used to determine the impact of
mining activities upon the water supply.

(2) If
replacement of a water supply is required under subsection (1) of this section
the permittee shall:

(a) If the
water supply to be replaced is a domestic supply, provide water supply on both
a temporary and permanent basis in accordance with this paragraph;

1. Within
forty-eight (48) hours after receiving notice from the cabinet that the water
supply was adversely impacted by mining, provide drinking water on an emergency
basis;

2. Within two
(2) weeks after receiving notice from the cabinet that the water supply was
adversely impacted by mining, provide a temporary water supply connected to the
existing plumbing, if any, that provides water for all ordinary household
purposes including drinking, cooking, bathing, sanitation, and laundry, and
drinking water for poultry, livestock, and domestic animals, and water for
noncommercial domestic agricultural and horticultural activities;

3. Within two
(2) years after receiving notice from the cabinet that the water supply was
adversely impacted by mining, provide a satisfactory permanent water supply;

(b) If the water
supply to be replaced is other than a domestic supply, provide water supply on
both a temporary and permanent basis on a schedule established by the cabinet
on a case-by-case basis;

(c) Provide
water supply equivalent to premining quantity and quality;

(d) Provide an
equivalent water delivery system; and

(e) Pay
operation and maintenance costs in excess of customary and reasonable delivery
costs for the premining water supply for a period of twenty (20) years, or
other period agreed to by the permittee and the owner of interest. Upon
agreement by the permittee and the owner of interest, the obligation to pay the
excess operation and maintenance costs may be satisfied by:

1. A one (1)
time payment in an amount which covers the present worth of the increased
annual operation and maintenance costs for a period of twenty (20) years, or
other period agreed to by the permittee and the owner of interest;

2. A uniform
series of payments whose present worth equals or exceeds the present worth of
the increased annual operation and maintenance costs for a period of twenty
(20) years, or other period agreed to by the permittee and the owner of
interest; or

3. Other
reasonable compensation arrangements which fairly compensate the owner for the
future operation and maintenance costs for a period of twenty (20) years, or
other period agreed to by the permittee and the owner of interest.

(3) If the
affected water supply was not needed for the land use in existence at the time
of loss, contamination, or diminution, and if the supply is not needed to
achieve the postmining land use, replacement requirements may be satisfied by
demonstrating that a suitable alternative water source is available and could
feasibly be developed. If this approach is selected, written concurrence shall
be obtained from the owner of interest.

(4)(a) If
contamination, diminution, or interruption to a water supply protected under
subsection (1) of this section occurs, the cabinet shall require the permittee
to obtain additional performance bond in the amount of the estimated cost to
replace the protected water supply, until the replacement is completed. If
replacement is completed within ninety (90) days of the occurrence, additional
bond shall not be required. The cabinet may extend the ninety (90) day time
frame, but not to exceed one (1) year, if the permittee demonstrates and the
cabinet finds in writing that not all reasonably anticipated changes affecting
the protected water supply have occurred, and that therefore it would be
unreasonable to complete the replacement within ninety (90) days.

(b) If the
permittee demonstrates that his liability insurance policy under 405 KAR
10:030, Section 4 covers the replacement, the additional bond amount required
under paragraph (a) of this subsection may be reduced by the amount of the
insurance coverage applicable to the replacement. The existence of applicable
insurance coverage shall not prevent forfeiture of a performance bond under 405
KAR 10:050.

(c) The
cabinet may promptly release or return the additional bond amount provided
under paragraph (a) of this subsection if the cabinet determines, based upon an
application and information submitted by the permittee, the cabinet's own
investigation as appropriate, and other information available to the cabinet,
that the permittee has satisfactorily completed the required replacement.

Section 9.
Discharges Into an Underground Mine. (1) Discharges into an underground mine
are prohibited, unless specifically approved by the cabinet after a
demonstration that the discharge will:

(a) Minimize
disturbance to the hydrologic balance on the permit area, prevent material
damage outside the permit area and otherwise eliminate public hazards resulting
from surface mining activities;

(b) Not result
in a violation of applicable water quality standards or effluent limitations;

(c) Be at a
known rate and quality which shall meet the effluent limitations of 405 KAR
16:070 for pH and total suspended solids, except that the pH and total
suspended-solids limitations may be exceeded, if approved by the cabinet; and

(d) Meet with
the approval of the Mine Safety and Health Administration.

Section 11.
Stream Buffer Zones. (1) No land within 100 feet of an intermittent or
perennial stream shall be disturbed by surface mining activities unless the
cabinet specifically authorizes surface mining activities closer to, or
through, such a stream. The cabinet may authorize such activities only upon
finding, as a result of evaluating a permit application, that:

(a) Surface
mining activities will not cause or contribute to the violation of applicable
state or federal water quality standards;

(b) Surface
mining activities will not cause significant detrimental effects on the water
quantity or quality of the intermittent or perennial stream; provided however,
this paragraph shall not apply to any reach of that stream that is upstream of
an impounding structure located within the permit area and within the stream
channel;

(c) Surface
mining activities will not cause significant detrimental effects on other
valuable environmental resources, as determined by the cabinet, of the stream;
and

(d) If there
will be a temporary or permanent stream-channel diversion, it will comply with
405 KAR 16:080.

(2) The area
that is not to be disturbed shall be designated a buffer zone, shall be adequately
shown in the permit application, and shall be marked by the permittee as
specified in 405 KAR 16:030.

(3)
Descriptions, drawings, data, and all other information required by the cabinet
to make the findings of subsection (1) of this section shall be submitted in a
permit application in a manner prescribed by the cabinet.

(4)(a) The
provisions of the amendments to this section shall apply to all surface mining
activities, except as provided in paragraph (b) of this subsection.

(b)1. Surface
mining activities included in a permit issued on or before August 17, 1987
shall be subject to the provisions that preceded the amendments to this section
in lieu of the provisions of subsections (1) through (3) of this section.

2. Surface
mining activities included in a permit application determined to be complete
pursuant to 405 KAR 8:010, Section 13(1) on or before August 17, 1987 shall be
subject to the provisions that preceded the amendments to this section in lieu
of the provisions of subsections (1) through (3) of this section.

Section 12.
Discharges of Accumulated Water. (1) Any accumulated water to be removed from a
pit, bench, or other disturbed area shall be pumped, siphoned, or otherwise
conveyed in a controlled manner to a natural or constructed drainway as approved
by the cabinet.

(2) Such
accumulated water may be discharged from the permit area without treatment only
if the untreated discharge meets the requirements of 405 KAR 16:070, Section
1(1)(g).